Boylan and Repatriation Commission (Veterans' entitlements)
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Boylan and Repatriation Commission (Veterans' entitlements) [2023] AATA 2052 (13 July 2023)
Division:VETERANS' APPEALS DIVISION
File Number:2020/8467
Re:Kevin Boylan
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:13 July 2023
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 7 January 2019 with effect from 21 June 2020.
Mr Kevin Boylan (the Veteran) made a claim for disability pension for “left knee Chondromalacia patella”, “bilateral osteoarthritis of the knees” and “aggravation of multiple enthesopathies” dated 22 March 2018. The Respondent received that claim on the same day.[1]
[1] Exhibit 1, T Documents, T13, pages 76-86, Claim for Disability Pension (received 01.05.2018).
On 5 July 2019, the Respondent issued a determination accepting the Veteran’s claim for “osteoarthritis left and right knee” and increased his rate of pension to 100% of the General Rate with effect from 1 February 2018.[2]
[2] Exhibit 1, T Documents, T30, pages 165-174, Determination.
On 17 July 2019, the Veteran sought review of that decision.[3]
[3] Exhibit 1, T Documents, T31, pages 175-178, Veteran’s request for review and income tax return for year ended 30 June 2017.
On 19 February 2020, the Veterans’ Review Board (VRB) issued a reviewable decision affirming the Respondent’s determination of 5 June 2019.[4]
[4] Exhibit 1, T Documents, T32, pages 179-183, Decision of VRB.
On 21 December 2020, the Veteran made an Application for Review of a Decision to the Tribunal seeking review of the VRB decision.[5]
[5] Exhibit 1, T Documents, T2, pages 3-5, Application for Review.
On 17 February 2021, the Veteran made an Application for an Extension of Time to Lodge an Application for Review of a Decision. The Respondent did not oppose the granting of an extension of time. Subsequently on 5 March 2021, the Tribunal granted the Veteran’s application for an Extension of Time to Lodge an Application for Review of a Decision.
BACKGROUND
The Veteran enlisted in the Australian Army on 19 March 1974 and served in the Royal Australian Signals Corp. He discharged on 8 October 1995 with the rank of Warrant Officer Class 1.[6]
[6] Exhibit 1, T Documents, T37, page 256, Record of Service.
The Veteran turned 65 in April 2019.
After discharging from the Army, the Veteran had a long and successful career in various roles in the telecommunication sector. The Veteran’s post service employment history has been summarised as follows:[7]
·1995-1996: Telecommunications Engineer with Pacific Star Telecommunications.
·1996-1997: Connections Manager with Axicop/Primus Telecom.
·1997-2000: Manager CTG with Ansett Airlines.
·2000-2002: Asia Pacific Manager with Nortel Networks.
·2003-2016: Manager/Telecommunications Engineer with Ergon Energy.
·May–October 2017: Senior Accounts Manager with RCS Telecommunications.
[7] Exhibit 2, Joint Hearing Book, A4, page 18, Report of Dr Chris Cunneen.
On 25 June 2015 and 7 July 2015, the Veteran reported right knee pain to Dr David Ellis,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an appeal by a veteran against a decision of the Repatriation Commission regarding his eligibility for a special rate pension. The veteran, who had served in the Australian Army from 1974 to 1995, sought to have his pension increased to the special rate, asserting that his service-related knee conditions prevented him from continuing in remunerative work. The Administrative Appeals Tribunal (AAT) was required to determine whether the veteran met the criteria for the special rate pension, specifically focusing on whether his incapacity from service-caused conditions alone prevented him from undertaking his previous employment and whether this resulted in a loss of salary or wages.
The legal issues before the Tribunal included establishing the relevant assessment period, confirming the veteran's eligibility for a disability pension at or above 70% of the general rate, and crucially, determining if he was totally and permanently incapacitated due to service-caused conditions alone, preventing him from continuing remunerative work. The Tribunal also had to consider if this prevention from work led to a loss of salary or earnings that he would not have suffered had he been free of the incapacity, and from what date the special rate pension should be effective.
The Tribunal's reasoning centred on assessing the veteran's medical evidence and work history against the requirements of section 24 of the Veterans' Entitlements Act 1986. It found that the veteran met the criteria for the special rate pension from 7 January 2019, the date on which all requirements of section 24(1) were satisfied. In relation to the effective date of the pension, the Tribunal noted that the veteran's application for review was made outside the prescribed three-month window. Applying section 177(2)(b)(i) of the Act, which allows for payment up to six months prior to the application date in such circumstances, the Tribunal substituted a new decision, granting the veteran the special rate pension from 7 January 2019.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On 17 February 2021, the Veteran made an Application for an Extension of Time to Lodge an Application for Review of a Decision. The Respondent did not oppose the granting of an extension of time. Subsequently on 5 March 2021, the Tribunal granted the Veteran’s application for an Extension of Time to Lodge an Application for Review of a Decision.BACKGROUND The Veteran enlisted in the Australian Army on 19 March 1974 and served in the Royal Australian Signals Corp. He discharged on 8 October 1995 with the rank of Warrant Officer Class 1.[6][6] Exhibit 1, T Documents, T37, page 256, Record of Service. The Veteran turned 65 in April 2019. After discharging from the Army, the Veteran had a long and successful career in various roles in the telecommunication sector. The Veteran’s post service employment history has been summarised as follows:[7]·1995-1996: Telecommunications Engineer with Pacific Star Telecommunications.·1996-1997: Connections Manager with Axicop/Primus Telecom.·1997-2000: Manager CTG with Ansett Airlines.·2000-2002: Asia Pacific Manager with Nortel Networks.·2003-2016: Manager/Telecommunications Engineer with Ergon Energy.·May–October 2017: Senior Accounts Manager with RCS Telecommunications.[7] Exhibit 2, Joint Hearing Book, A4, page 18, Report of Dr Chris Cunneen. On 25 June 2015 and 7 July 2015, the Veteran reported right knee pain to Dr David Ellis, his general practitioner and was sent for an x-ray and MRI of his right knee.[8][8] Exhibit 2, Joint Hearing Book, S3, pages 194-195, Records of Ferny Fair Medical Clinic. On 13 July 2015, Dr Ellis referred the Veteran to Dr Andrew Patten, orthopaedic surgeon.[9] [9] Exhibit 2, Joint Hearing Book, S3, page 195, Records of Ferny Fair Medical Clinic. On 16 July 2015, the Veteran saw Dr Patten[10] and subsequently on 21 July 2015 underwent a right knee arthroscopic debridement.[11][10] Exhibit 2, Joint Hearing Book, S4, page 407, Records of Dr Andrew Patten.[11] Exhibit 2, Joint Hearing Book, S4, pages 409-413, Records of Dr Andrew Patten. On 26 October 2015, the Veteran reported left knee symptoms to Dr Patten.[12][12] Exhibit 2, Joint Hearing Book, S4, page 415. Both knees subsequently deteriorated.[13][13] Exhibit 2, Joint Hearing Book, S4, pages 415-422. On 7 December 2015, the Veteran saw Dr Ellis who recorded that both knees have pain and disability and provided a further letter to Dr Patten.[14][14] Exhibit 2, Joint Hearing Book, S3, pages 196-197. On 7 June 2016, the Veteran made an expression of interest for voluntary retrenchment and on 22 July 2016 his employer Ergon Energy advised him that his position of Manager Nexium was redundant.[15][15] Exhibit 2, Joint Hearing Book, S1, pages 129-132. On 25 August 2016, the Veteran underwent a right knee replacement by Dr Patten who provided an operative diagnosis of “right knee osteoarthritis”.[16] He returned to work 6 weeks later.[17][16] Exhibit 2, Joint Hearing Book, S4, pages 424-427.[17] Exhibit 2, Joint Hearing Book, S4, page 429.
Evidence
Evidence Before The Court
The issue before the Tribunal is whether the Applicant is eligible for payment of the pension at the Special Rate. This requires determining:(a)What is the assessment period?(b)Whether the Veteran:(i)made a valid application under section 14 of the Act for an increase in the rate of pension that he was receiving (section 24(1)(aa) of the Act); (ii)had not yet turned 65 when the application was made (section 24(1)(aab) of the Act); and(iii)was being paid the disability pension at a rate equal to or greater than 70% of the General rate of pension (section 24(1)(a)(i) of the Act). (c)If the answer to (b) is yes, whether the Veteran is totally and permanently incapacitated, that is unable to work more than eight hours a week, due to service-caused incapacity alone (section 24(1)(b) of the Act); and (d)If the answer to (c) is yes, whether the Veteran by reason of incapacity from his service-caused conditions, alone, is prevented from continuing to undertake remunerative work that he was undertaking; and(e)If the answer to (d) is yes, whether the Veteran, by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary or wages, or of earnings, that he would not be suffering if he was free of that incapacity.(f)If the answer to (e) is yes, from what date should the Veteran be paid the pension at the Special Rate?EVIDENCEApplicant’s Evidence The Veteran provided a statement dated 11 June 2021 outlining his work history since 2003 and how the chronic pain in his knees had affected him. The Veteran stated that when he was offered a voluntary redundancy in late 2016 he saw it as an opportunity to have the knee replacement surgery and to have a reasonable time for recovery before seeking new employment. The Veteran stated:[92]… The left knee was replaced in August 2016 and the right knee in January 2017. I completed rehabilitation in both hospital and with local providers to assist with recovery. In May 2017 I was offered the role of Account Executive with RCS Telecommunication to manage a number of their major customers. The role was mainly sedentary with some commuting to local and regional customer sites. I was still taking a strong pain medication when I commenced the role with the expectation that this would reduce over time. However, I found that rather than abate, the pain levels slowly increased. The level of pain was at its best in the morning after a night of lying down, but steadily increased throughout the day due to physical activity and/or sitting down for periods of time. This pain reached levels that were quite debilitating. To manage the pain my medication dosages were steadily increased to try and find a dosage that enabled me to work with an acceptable level of pain. The problem was that the dosage needed to get to an acceptable level of pain where I could work comfortably would make me groggy, very tired, agitated and prone to mistakes. Given the impacts of the medication on my health, my family and the possibility of creating significant impacts on RCS’s customers and business I discussed with my GP what else could be done to manage my pain. After much discussion with my GP, ceasing work appeared to be the best/only way to be able to reduce my medication, manage my pain levels and improve my life outcomes. As a result of these discussions I gave notice to RCS and ceased work in October 2017. [92] Exhibit 2, Joint Hearing Book, A1, page 2, Statement of Veteran.
Decision
Reasons for decision
The Tribunal is satisfied that the Veteran satisfied the requirements of section 24(1)(c) of the Act for the period between 7 January 2019 (being when the Veteran’s bilateral carpal tunnel condition is taken to have ceased to have a preventative impact on his ability to undertake remunerative work) and 7 September 2019 (being when the Veteran experienced a heart attack) .Conclusion in relation to section 24 of the Act Based on the evidence before it and as outlined in the above consideration the Tribunal finds that the Veteran:(a)Met the requirements of section 24(1)(aa) of the Act from 22 March 2018.(b)Met the requirements of section 24(1)(aab) of the Act from 22 March 2018.(c)Met the requirements of section 24(1)(a) of the Act from 1 February 2018.(d)Met the requirements of section 24(1)(b) of the Act from 22 March 2018.(e)Met the requirements of section 24(1)(c) of the Act from 1 January 2019 to 7 September 2019. Consistently with the decision in Smith and section 19 of the Act the Tribunal finds that the Veteran is eligible to be paid the disability pension at the Special Rate pursuant to section 24 of the Act from 7 January 2019, being the date on which the Tribunal found that he first met all requirements of section 24(1) of the Act. From what date should the Veteran be paid the Special Rate of Pension? Noting that the Veteran made his application for review to the Tribunal outside of the prescribed timeframe, the Tribunal is conscious of the operation of section 177 of the Act. Relevantly, section 177 provides:Effective dates of certain determinations relating to payment of pension or seniors health card(1)This section is in addition to, and not in substitution for, any of the provisions of section 43 of the Administrative Appeals Act 1975 in their application to proceedings for a review by the Administrative Appeals Tribunal of a reviewable decision.(2)Where the Administrative Appeals Tribunal, upon application made under subsection 175(1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension or income support supplement) or attendant allowance, or increases the rate at which a pension (not being a service pension or income support supplement) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:(a) if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board--from a date not earlier than the earliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or(b) in any other case:(i) if the review relates to a claim in accordance with section 14 – from a date not more than 6 months before the date on which the application under subsection 175(1) was made; or(ii) if the review relates to an application in accordance with section 15, or to an application for attendance allowance—from the date on which the application under subsection 175(1) was made.
